102 Ill. App. 572 | Ill. App. Ct. | 1902
delivered the opinion of the court.
It has long been the rule in this state that voluntarily-going to trial with a plea unanswered is a waiver of such plea. , Brazzle v. Hawkins & Usher, Breese, 35; Ross v. Reddick, 1 Scam. 73; Armstrong v. Mock, 17 Ill. 166; Spencer v. Langdon, 21 Ill. 192; Strohm v. Hayes, 70 Ill. 41; St. L., A. & T. H. Ry. Co. v. Brown, 34 Ill. App. 555; Kaestner v. First National Bank, 170 Ill. 322.
Had the defendant below appeared, and without calling attention to the additional unanswered pleas or objection, gone to trial, his so doing might, after verdict, have been treated as a waiver of the pleas. It does not appear that he did this, and his denial of his presence at the trial is not controverted.
The record reads:
“ This cause being called for trial, comes the plaintiff by her attorney, and issues being joined, it is ordered that a jury come.”
¡No issue was in any manner made up upon the four special pleas last filed by the defendant below. As neither the defendant nor any one for him appeared at the trial there was no waiver of the right to have these pleas answered. In effect the defendant has been, by the trial in his absence, deprived of an opportunity to present the defense set forth in these pleas. Going to trial under such circumstance was error. Seavey v. Bogers, 69 Ill. 534-536; Blake v. Miller, 118 Ill. 500, 501, 502; Steelman v. Watson, 5 Gil. 250, 251; Paul v. People, 82 Ill. 82; Sammis v. Clark, 17 Ill. 398; Moore v. Little, 11 Ill. 549; Chapman v. Wright, 20 Ill. 120, 126; Thomas v. McGuinness, 94 Ill. App. 248.
The judgment of the Circuit Court is reversed and the cause remanded.